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Judicial Review of Copyright Term Extension Legislation

In Eldred v. Ashcroft, the Supreme Court has both an opportunity and a responsibility to reaffirm our basic constitutional system of checks and balances by making an independent review of whether the Copyright Term Extension Act (CTEA) was validly enacted pursuant to congressional power under the Intellectual Property Clause. The Intellectual Property Clause was drafted with important substantive limitations on federal power to grant exclusive rights of patent and copyright, designed to insure that Congress did not succumb to the temptation to effect indirect wealth transfers to rent-seeking special interests. To uphold the CTEA would permanently remove these explicit textual limitations on congressional power from the Constitution because concentrated special interests will always have greater lobbying resources than self-appointed and uncompensated representatives of the public interest. Overturning the CTEA would not take away from Congress the basic power to resolve the complex policy tensions that will be present in any modern copyright statute.

The Court possesses the power of judicial review over Intellectual Property Clause legislation. The Court should also independently review the bases on which Congress acts to ensure that there is good reason to believe that Congress acted with the constitutionally mandated goals in mind and that Congress had a reasonable basis to believe that its action would further those goals through constitutionally permitted means.

There is nothing in the record to show that Congress had a reasonable basis for believing that the CTEA’s retroactive extension would promote the progress of science. Congress did hear from copyright owners holding rights to a relatively small number of old but still valuable works who were seeking desperately to keep their royalty streams flowing. If there was a constitutionally valid reason for retroactive extension, we can be sure that these representatives would have thought of and presented them. Consequently, the Court in Eldred can and should find, without remand, that retroactive extension under the CTEA was unconstitutional (without necessarily determining the validity of any prior retroactive extensions), and the Court should overturn the CTEA in its prospective aspect as well, giving Congress another try at adopting prospective extension if Congress concludes that it is in the public interest and can find constitutionally valid bases for acting. By “remanding” to the legislature, the Court would recognize the basic policymaking role of Congress in our democratic society while maintaining its own special role in interpreting the meaning of the Constitution.

This article summarizes the evidence before Congress for the CTEA’s adoption, argues that any independent review of that evidence must conclude that none of the justifications of the CTEA offered by Congress can be the real reason for the congressional action, concludes that the only viable inference from an independent reading of the evidence before Congress was that Congress gave in to the demands of the heirs and assignees of old copyrights that still had economic value but were about to enter the public domain, and amplifies the claims that the powers granted to Congress by the Intellectual Property Clause require an approach to judicial review different from that used in Commerce Clause cases.